People v. Dean ( 2024 )

Filed 1/31/24
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and
Respondent, A166863
v. (Mendocino County
LAMONT ALEXANDER Super. Ct. Nos.
DEAN, SCUKCRCR202036556-1,
SCUKCRCR202037103-1)
Defendant and
Appellant.
Lamont Dean was convicted of assault with intent to
commit rape (Pen. Code,1 § 220, subd. (a)(1)) and one prior strike
allegation (§§ 667, subds. (b)–(i), 1170.12), as well as a separate
offense of bringing drugs into a jail (§ 4573.6, subd. (a)). The trial
court sentenced him to 13 years in prison and imposed various
fines and fees. We reversed and remanded for resentencing due
to an intervening change in the sentencing law. (People v. Dean
(June 29, 2022, A162706) [nonpub. opn.] (Dean).) On remand,
the trial court sentenced Dean to a total of nine years in prison
and imposed various fines and fees. Dean again appeals, raising
* Pursuant to California Rules of Court, rules 8.1105(b) and
8.1110, this opinion is certified for publication with the exception
of parts II–IV of the Discussion section, post.
1 Undesignated statutory references are to the Penal Code.
1
challenges to the trial court’s calculation of his custody credits,
imposition of fines despite his indigency, refusal to set aside his
admission to the strike allegation at his trial for lack of the
required admonitions, and denial of his motion under People v.
Marsden (1970) 2 Cal.3d 118. The Attorney General concedes
error on the first three issues. We need not address Dean’s
Marsden argument because we agree with the parties that Dean’s
first three arguments require reversal and remand for further
proceedings.
BACKGROUND
The details of Dean’s offenses are set forth in Dean and are
irrelevant here, so we need not repeat them. The background
relevant to this appeal begins with the pretrial settlement
discussions. Before trial, the prosecutor made a plea bargain
offer of the low term for the assault charge, doubled, and
dismissal of the drug charge. Dean’s counsel told the court that
Dean had rejected the offer.
Two weeks later, before beginning voir dire, the trial court
asked Dean whether he was willing to stipulate to the allegation
that he had previously been convicted of assault with a deadly
weapon.2 The court told Dean, “First thing we need to address is
the strike that’s alleged in the information. [¶] Mr. Dean, as you
know, you have a right to have a jury trial or a court trial on the
truth of that allegation. The strike would only be significant in
terms of the consequence today or in this trial if the jury finds
2 We grant Dean’s request for judicial notice of the record in
Dean.
2
you guilty of a felony. It enhances the sentence. I know you and
your attorney have talked about that.” The court then asked,
“With the understanding you have a right to a jury trial or a
court trial on the strike, is it your intention to admit the truth of
that strike and give up your right to have a jury or court trial on
that?” Dean replied, “Stipulated.” Dean’s counsel then affirmed
to the trial court that he was joining in Dean’s waiver of both a
jury trial and a court trial.
The trial court continued, “Mr. Dean, with your rights in
mind, having talked with your attorney, I need you to tell me if
you admit or deny that you suffered a conviction for assault with
a deadly weapon, violation of Penal Code section 245(a) in Solano
County in November of 1999. [¶] Do you admit that that is true,
sir?” Dean replied, “Yes, your Honor.” Dean’s counsel again
joined in the waiver and admission.
After the jury found Dean guilty as charged, the trial court
sentenced Dean to the upper term of six years on the assault
conviction. The court then doubled it based on the strike that
Dean had admitted, for a total of 12 years. The court also
sentenced Dean to one consecutive year for a later offense of
smuggling fentanyl into the jail. Dean’s total sentence was
therefore 13 years. The court calculated 176 days of actual time
served and 26 days of credit pursuant to section 2933.1, for total
credits of 202 days. The court also imposed various fines and
fees.
Dean appealed, arguing he was entitled to the retroactive
application of an intervening amendment to section 1170. We
3
agreed and remanded to the trial court for a complete
resentencing. Dean had also argued that the imposition of fines
and fees without a hearing to determine his ability to pay them
was unconstitutional and that the statutory authority for one of
the fines had been repealed. We declined to address those
arguments because the trial court could consider the fines anew
on resentencing.
In the resentencing hearing on remand, Dean asked the
trial court to impose the low term and to strike all fines and fees
because he was indigent. The court announced its intention to
impose the middle term of four years, doubled to eight years
because of the strike allegation, with an extra year for the drug
charge, for a total of nine years.
Dean personally objected, arguing, among other things,
that his prior conviction did not qualify as a strike. The trial
court disagreed and said that the hearing was not to challenge
the validity of the strike. It viewed our opinion as stating that
the strike finding remained and the only purpose for the
resentencing hearing was to decide between the middle and
upper terms on the assault conviction.
Dean then told the trial court that when he admitted the
strike, he thought it was going to be dismissed or stricken. He
said he would never have admitted the strike had he known it
would double his sentence. The trial court repeated that this
issue was not before it. The court continued the hearing for an
updated calculation of Dean’s custody credits. The court said it
4
wanted some argument at the continued hearing about whether
it had discretion to stay the $300 fine under section 290.3.
At the continued hearing, Dean began by making a
Marsden motion. In a closed hearing, Dean raised various
complaints against his counsel, including that his counsel had not
challenged the validity of the prior strike. Dean reiterated that
he would never have admitted the strike had he known it would
double his sentence.
Dean’s counsel said the admission of the strike was a
tactical choice. He also stated that the only remaining matter
was the re-calculation of his credits, so that any communication
difficulties were no longer significant.
The trial court found Dean’s counsel had not fallen below a
standard of professional representation and could continue to
represent him because the only issue remaining concerned Dean’s
credits against his sentence. The trial court therefore denied
Dean’s motion.
Back in open court, the trial court confirmed that Dean’s
prior conviction constituted a strike. The court then sentenced
Dean to the middle term of four years, doubled to eight years,
with a consecutive year for the drug conviction. In both the
assault and drug cases the trial court stayed the $40 court
security fees and $30 criminal conviction assessments. The court
imposed the statutory minimum fines of $300 under section
1202.4. The court also imposed and stayed $300 parole
revocation fines. In the assault case, the court imposed a $300
5
fine under section 290.3. The court struck the $412 probation
report fee in the assault case.
The trial court then said Dean had earned 761 days actual
credit with an additional 114 days pursuant to section 2933.1, for
total credits of 875 days.
DISCUSSION
I. Calculation of additional credits
Dean first argues that, upon resentencing, the trial court
should have updated only the calculation of actual time he served
in prison and should not have updated the calculation of conduct
credits for his time in prison. The Attorney General agrees. We
are not bound by the Attorney General’s concession of error.
(People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021.) But after
conducting our own independent investigation, we agree that the
trial court erred by using the time Dean served in prison to
update the calculation of Dean’s conduct credits.
In People v. Buckhalter (2001) 26 Cal.4th 20, 30–31
(Buckhalter), the Supreme Court reviewed the separate and
independent conduct credit schemes for presentence custody in
jail (§ 4019) and postsentence imprisonment (§ 2930 et seq.). It
concluded from these statutes that when a defendant’s case is
remanded to the trial court for resentencing, the trial court has a
duty to update the calculation all actual time served, whether
before or after sentencing and in jail or prison. (Buckhalter, at
p. 29.) But the defendant cannot earn additional good behavior
credits under the presentencing credit scheme for time confined
in the jail pending resentencing, because such good behavior
6
credits are available only to defendants before an initial
sentencing.3 (Ibid.) Instead, the defendant’s term-shortening
credits during resentencing must be calculated exclusively under
the postsentence scheme, which gives the Director of Corrections
the authority to establish and administer procedures for accrual
and forfeiture of credits for time in work or other programs in
prison. (Id. at pp. 29–31.)
At the original sentencing, the trial court calculated that
Dean was entitled to 26 days of additional credit for his time in
jail, which reflected a 15 percent cap on presentence or
postsentence conduct credit under section 2933.1 for defendants
convicted of a felony listed in section 667.5, subdivision (c), like
Dean. At the resentencing, the trial court updated that
calculation and said Dean had earned 114 days of additional
credit, again based on the 15 percent cap in section 2933.1. Dean
argues the trial courts for many years have customarily updated
conduct credit allegations in this manner, based on a misreading
of Buckhalter as requiring the trial court to recalculate both the
actual time served and conduct credits when resentencing. In
reality, Buckhalter said only that resentencing courts must
recalculate actual time served. Dean argues that this customary
approach, while erroneous, used to be a harmless overreach
because trial courts calculated the conduct credits for the
postsentence period using the same statutes — sections 2931 to
3 The California Supreme Court later reached the same
conclusion when a defendant’s conviction is reversed on appeal
and when a trial court recalls a defendant’s sentence. (People v.
Johnson (2004) 32 Cal.4th 260, 263.)
7
2933.6 — that the California Department of Corrections and
Rehabilitation (CDCR) would have.
But in November 2016, the voters enacted article I, section
32 of the California Constitution, the Public Safety and
Rehabilitation Act of 2016, subdivision (a)(2) of which states,
“The Department of Corrections and Rehabilitation shall have
authority to award credits earned for good behavior and approved
rehabilitative or educational achievements.” Subdivision (b) of
the same provision requires the CDCR to adopt regulations to
carry out this authority. (Cal. Const., art. I, § 32, subd. (b)
(Public Safety and Rehabilitation Act of 2016).) Dean contends
this provision repealed section 2933.1 to the extent that it capped
postsentence conduct credits for defendants like Dean. He
contends he is eligible for more worktime credits under the
CDCR’s new regulations enacted pursuant to its new
constitutional authority. (See Cal. Code Regs., tit. 15, §§ 3043–
3043.6.) According to Dean, the trial court’s calculation of
additional conduct credits for the postsentence period pursuant to
the 15 percent cap in section 2933.1 was therefore incorrect and
deprived him of term-shortening credits.
Dean appears to be correct that the Public Safety and
Rehabilitation Act of 2016 effectively repealed sections 2933.1 as
to postsentence worktime credits. However, we need not
conclusively answer that question. Even if section 2933.1
remains in force, the trial court still erred under Buckhalter by
calculating additional credits for Dean’s postsentence
imprisonment, as the Attorney General concedes. Buckhalter
8
only required a trial court resentencing a defendant to
recalculate “all actual time” the defendant has served.
(Buckhalter, supra, 26 Cal.4th at p. 29, italics omitted.) The
CDCR is responsible for calculating a defendant’s postsentence
credits. (Id. at pp. 29–30.)
If this were the only problem with Dean’s new sentence, we
would simply order the abstract of judgment corrected by stating
his actual time credits, including his time in prison, and
reverting back to the initial calculation of 26 days of additional
presentence conduct credits. The CDCR would then be free to
determine any additional credits Dean may have earned after his
initial sentence beyond his actual time served. However, because
we are remanding to correct the other errors discussed below, we
will instruct the trial court to calculate Dean’s credits in line with
these principles when it resentences him on remand.
II. Fines and fees
Dean next argues that the trial court abused its discretion
by imposing a $300 fine under section 290.3 and $300 restitution
fines under section 1202.4 because he cannot pay them. Dean
argues that the trial court imposed these fines only because it
believed they were mandatory and that this was error. Dean
argues that section 290.3 allows a court to refrain from imposing
the fine under that section if the defendant cannot pay it and
that People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)
allows trial courts to stay any fine if a defendant cannot pay it.
“In a nutshell, Dueñas, supra, 30 Cal.App.5th at pages
1168–1169, held that a sentencing court violated the due process
9
rights of a defendant who committed her acts out of poverty when
it imposed certain mandatory fees and fines that lack a statutory
exception without first making a finding the unemployed
defendant (who suffered from cerebral palsy) had the ability to
pay while she was on probation.” (People v. Oliver (2020)
54 Cal.App.5th 1084, 1100.) Several decisions have disagreed
with Dueñas, and the California Supreme Court is currently
considering the issue. (E.g., People v. Hicks (2019)
40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946;
People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13,
2019, S257844.)4 In the absence of any guidance from our
Supreme Court, we adhere to the view expressed in this
Division’s decision in People v. Cowan (2020) 47 Cal.App.5th 32,
review granted June 17, 2020, S261952 (Cowan) that
constitutional challenges to fines or fees based on a claim that a
defendant cannot pay them should be evaluated under the Eighth
Amendment and article I, section 17 of the California
Constitution. (Cowan, at p. 42; see Estate of Sapp (2019)
36 Cal.App.5th 86, 109, fn. 9 [“Absent a compelling reason, the
Courts of Appeal are normally loath to overrule prior decisions
from another panel of the same undivided district or from the
same division”].) Four factors are relevant to that type of
evaluation: “ ‘(1) the defendant’s culpability; (2) the relationship
between the harm and the penalty; (3) the penalties imposed in
4 We deny as unnecessary Dean’s request for judicial notice
of the Solicitor General’s answering brief on the merits in People
v. Kopp, supra, S257844.
10
similar statutes; and (4) the defendant’s ability to pay.’ ” (Cowan,
at p. 47.) A defendant bears the burden of proof regarding his or
her ability to pay. (Id. at p. 49.)
The Attorney General notes that Dean challenged all fines
and fees in the trial court. However, the parties never actually
argued the issue. The Attorney General suggests that this,
combined with Dean’s claims of indigency in the trial court and
indications in the original probation report that Dean may have
disability or worker’s compensation income, warrants remanding
to the trial court for an inquiry into Dean’s ability to pay the
fines.5 Dean originally asked us to strike the section 290.3 fine
and stay the restitution fines, but in his reply brief he agrees
with the Attorney General that remand is appropriate if we
remand for resentencing because of the other errors.
We agree with the parties that remand for a hearing on
Dean’s ability to pay the fines is necessary. The court indicated it
might stay the section 290.3 fine if allowed, and the statute does
plainly so allow. (§ 290.3, subd. (a) [individuals convicted of
listed offenses shall be punished by $300 fine “unless the court
determines that the defendant does not have the ability to pay
the fine”].) It is not clear why this was not brought to the trial
court’s attention. The trial court’s imposition of this fine cannot
5 The Attorney General suggests that Dean may have
forfeited the fines issue by failing to pursue it below. But the
Attorney General chooses not to urge forfeiture and addresses the
issue on the merits, to forestall a claim of ineffective assistance of
counsel. We will likewise address the issue in the interests of
judicial economy, to avoid the need for separate habeas corpus
proceedings. (People v. Butler (2003) 31 Cal.4th 1119, 1128.)
11
be considered an exercise of its informed discretion when the trial
court was not aware that it had the discretion to stay it. (People
v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [trial courts cannot
exercise informed discretion when imposing sentence if they are
unaware of the scope of their discretionary powers].) The trial
court appears to have credited Dean’s claims that he could not
pay any fines, since it stayed the $30 criminal conviction
assessment and $40 court security fee. The trial court may have
been willing to stay the section 290.3 fine as well, and to strike
all remaining fines on constitutional grounds. However, because
the parties never addressed the issue directly, the prosecutor did
not have the opportunity to argue that Dean might have
alternative sources of income. Nor did the parties address the
other three factors under Cowan. (Cowan, supra, 47 Cal.App.5th
at p. 47.) On remand, the parties may raise these issues again
with the trial court.
III. Stipulation to strike allegation
Dean contends the trial court erred by doubling his
sentence during the resentencing because his admission of the
strike allegation before his jury trial was invalid. The Attorney
General agrees that Dean’s admission of the strike was flawed, as
do we.
The California Supreme Court’s precedents “ ‘require,
before a court accepts an accused’s admission that he has
suffered prior felony convictions, express and specific
admonitions as to the constitutional rights waived by an
admission.’ ” (People v. Cross (2015) 61 Cal.4th 164, 170 (Cross).)
12
Those rights are “the privilege against compulsory self-
incrimination, the right to trial by jury, and the right to confront
one’s accusers.” (Ibid.) “[A] defendant must also be advised of
‘the full penal effect of a finding of the truth of an allegation of
prior convictions.’ [Citation.] . . . [A]n accused, before admitting a
prior conviction allegation, must be advised of the precise
increase in the prison term that might be imposed, the effect on
parole eligibility, and the possibility of being adjudged a habitual
criminal.” (Id. at pp. 170–171.) However, a violation of these
requirements is not reversible “ ‘if the record affirmatively shows
that [the admission] is voluntary and intelligent under the
totality of the circumstances.’ ” (Id. at p. 179; see also People v.
Farwell (2018) 5 Cal.5th 295, 303–304 [“totality of the
circumstances test applies in all circumstances where the court
fails, either partially or completely, to advise and take waivers of
the defendant’s trial rights before accepting a guilty plea” (italics
omitted)].)
Dean’s prior strike doubled the punishment for his assault
offense, so he was entitled to the proper admonitions. (§§ 667,
subds. (b)–(i), 1170.12; Cross, supra, 61 Cal.4th at p. 175
[admonitions required before a stipulation that exposes
defendant to additional punishment, whether by enhancement or
alternative sentencing scheme].) Before Dean admitted the
strike, the trial court told Dean only that by admitting the strike,
he would give up his right to a jury or bench trial on the
allegation and that the strike would enhance his sentence. The
court did not mention the privilege against self-incrimination or
13
the right to confront his accusers, nor did it tell him “ ‘the precise
increase in the prison term that might be imposed’ ” as a result of
the admission. (Cross, at p. 171.) This was error.
This error requires us to set aside the finding on the strike
allegation because Dean and the Attorney General are correct
that the record does not affirmatively show that Dean’s
admission of the allegation was voluntary and intelligent under
the circumstances. (Cross, supra, 61 Cal.4th at p. 179.) When
making this determination, we must consider the entire record,
not just the plea colloquy, and also Dean’s previous experience in
the criminal justice system. (Id. at pp. 179–180.)
Before admitting the strike, Dean rejected an offer from the
prosecutor of the “low term doubled,” which would have meant a
four-year prison sentence. (§ 220, subd. (a)(1) [punishment for
assault with intent to commit rape is two, four, or six years].)
However, we cannot say affirmatively that this, together with the
trial court’s “enhances” remark, means that Dean understood the
full sentencing ramifications of his admission of the strike and
intelligently chose to admit it anyway. There is no indication
that Dean’s counsel told Dean that the prosecutor’s offer of four
years was the result of a doubling of the low term. Dean could
have simply rejected the plea offer because he was unwilling to
agree to a four-year prison term, without learning of the
calculation that led to that result. Additionally, neither the plea
offer nor the trial court’s “enhances” remark informed Dean of the
arithmetic that doubling the low term would yield four years, but
14
doubling the middle term would yield eight years and doubling
the upper term would yield 12 years.
There is also no indication that Dean was advised that he
was waiving his rights against self-incrimination and to confront
his accusers. Dean might have learned of these rights in his jury
trial for the charge underlying the strike allegation, but that
conviction occurred more than twenty years earlier. (See People
v. Dean (Oct. 30, 2001, A091496) [nonpub. opn.].) The record
suggests Dean faced other charges in the interim, but since the
record does not contain any details of those proceedings, they tell
us nothing about Dean’s understanding of his rights.
The trial court stated that it knew Dean had talked with
his attorney about the admission. (See Cross, supra, 61 Cal.4th
at p. 180 [record did not show stipulation was knowing and
voluntary in part because trial court did not ask whether
defendant had discussed stipulation with counsel].) But the trial
court did not explain the basis for this knowledge, nor did it give
any indication that Dean had specifically discussed with his
counsel the penal consequences of the plea or the waiver of his
self-incrimination and confrontation rights. Dean’s counsel gave
no indication he had explained such issues to Dean when he
joined Dean’s waiver of the right to trial on the admission. In
Dean’s Marsden hearing, Dean asserted directly that he did not
understand the impact of the admission and would not have
admitted the strike had he known the penal consequences. In
response, his counsel said only that the admission was a tactical
15
choice. Dean’s counsel still did not say that he had explained the
penal consequences to Dean in advance of the admission.
The trial court refused to consider this issue in the
resentencing hearing because it viewed our prior opinion as
establishing the validity of the strike. We declared the strike
allegation irrelevant to our holding there, so we did not directly
declare the strike allegation valid. But we did affirm the
judgment in all respects other than the need for resentencing set
out in the opinion, so the trial court’s interpretation of our
opinion is understandable. Nonetheless, we will not find Dean’s
challenge to be forfeited. Because Dean did not raise this issue in
his first appeal and we did not consider it, there are no concerns
here about giving Dean multiple bites at the apple. In fact, as
Dean notes, we are in a better position to consider the issue in
this appeal than the prior one, since we can consider the record of
the Marsden hearing that further supports Dean’s position that
his counsel did not explain the consequences of the strike
admission.
Moreover, considering the issue here serves the interests of
judicial economy. (People v. Butler, supra, 31 Cal.4th at p. 1128.)
The Attorney General does not dispute that reversal is
warranted, so refusing to consider the issue now would require
Dean to file a habeas corpus petition alleging ineffective
assistance of counsel, to which the Attorney General would
presumably accede. This would multiply the proceedings without
changing the substantive result. In the interest of avoiding such
wasteful effort, we deem it prudent to grant Dean’s challenge
16
here, notwithstanding Dean. We also note that the Supreme
Court has held that a defendant cannot forfeit an argument that
an admission of a sentence-prolonging admission was not
knowing and voluntary, given that the required admonitions
serve a prophylactic constitutional purpose. (Cross, supra,
61 Cal.4th at pp. 171–173.)
IV. Marsden motion
Dean finally argues that the trial court erred when it
denied his Marsden motion. The trial court denied the motion in
part because it found that Dean’s counsel could still represent
Dean at that point in the resentencing proceedings, when the
only remaining issue concerned the number of credits to which
Dean was entitled. Because we are remanding for further
proceedings, this aspect of the trial court’s rationale for denying
Dean’s motion no longer holds. Accordingly, if Dean renews his
Marsden motion on remand, the trial court should consider again
whether Dean’s trial court counsel adequately represented him
and whether he and Dean have an irreconcilable conflict that
would substantially impair Dean’s right to assistance of counsel.
(People v. Smith (2003) 30 Cal.4th 581, 604 [standard for
Marsden motions].)
DISPOSITION
The true finding on the strike allegation is set aside. The
matter is remanded for further proceedings not inconsistent with
this opinion. In all other respects, the judgment is affirmed.
BROWN, P. J.
17
WE CONCUR:
GOLDMAN, J.
SMILEY, J.
People v. Dean (A166863)

Judge of the Superior Court of California, County of
Alameda, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
18
Trial Court: Mendocino County Superior Court
Trial Judge: Hon. Keith Faulder
Counsel: Meredith Fahn, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters
and Jeffrey M. Laurence, Assistant Attorneys
General, Catherine A. Rivlin, Gregg E.
Zywicke, Deputy Attorneys General for
Plaintiff and Respondent.